IR35, or intermediaries legislation to give it its proper name, is still here. And the signs are it’s encroaching on all walks of contracting life.
First, the decision of whether you’re working “inside” IR35 went to the public sector to decide. In the upcoming IR35 Reform (April 2020), the same decision-making process is going to the private sector.
Already, many banks have put a stop to hiring contractors post-reform. Rather than taking the responsibility of deciding, those who’ve opted out have taken what many see as the ‘easy’ way out.
So, what can you do? Is limited company and umbrella contracting dead?
Businesses have become too used to hiring flexible workers for contracting to disappear. And those with influence are fighting to scrap the reform and Loan Charge changes.
But you can’t leave the responsibility to others to ensure you’re working as a legitimate contractor.
You must safeguard your business against HMRC investigators, should they come calling. You must also prep yourself as a business in the eyes of your agency or client.
Sounds simple, if you say it quick enough. But the fact is, 60% of contractors operate in the grey zone. Even worse, they don’t even know it.
What’s the grey zone? If you’re there, it means a tax inspector’s investigation could go either way. They could find you operating outside IR35 (good), but equally find you operating inside IR35 (bad).
And if you want to continue to contract through a limited company, the onus is on you. Businesses—public or private sector—don’t want a backlash, nor do they want to have to decide.
Yes, retention is a direct consequence of your income and how it’s accounted for. But to leave IR35 inspectors with no doubt about your compliance, you must prove that you’re a business entity:
All contractors should have their contracts reviewed by an IR35 specialist. Better still, commit your actual working practices to pen and paper, too. If the results of the review are positive, keep a record of this safe so it’s always to hand in case an IR35 enquiry manifests itself.
Also, create a document that outlines the significant reasons that show you to be a genuine contractor. The document must be crystal clear and demonstrate that you’re not a disguised employee.
Holding business insurances shows that you’re accepting commercial risk, even as a contractor. Professional Indemnity, Public Liability, even ‘E-Risks’ cover will support your business argument.
Paying regular insurance premiums through your company distinguishes you from disguised employees. And that’s what you want the inspectorate to see.
Buying insurance hasn’t always been the greater indicator of self-employed status. But that changed when HMRC brought in the Business Entity Test.
Those of you with your finger on the pulse know that the Revenue is withdrawing BETs in April 2015. But you can still use holding insurance as evidence that you’re outside IR35 in the event of an investigation. This is for cases opened before 6th April or for three years after a recent BETs if the outcome was ‘outside’ or ‘low risk’.
As contractors, you can buy such business insurance policies for only a few pounds a month; it’s a no-brainer, if ever there was one.
Many freelancers and contractors provide an individual B2B service. For many, that the skill they offer sets them apart was the catalyst to them contracting in the first place. So asking most contractors to send in a substitute is often implausible.
That doesn’t stop substitution from being a litmus test for IR35 inspectors, though. HMRC will always consider substitution as a key test in determining whether you are in- or outside IR35.
Could you send a substitute in your place, whether it’s for a day, a week or even longer? If you can, you’d be well on the way to proving that you’re a business in the eyes of the taxman.
An agency or client might baulk at the thought of you sending a replacement. But once you explain that your replacement would have the same skill set, it could become less daunting for them. That goes for you and the agency as well as the client in question.
After all, you are contracting on a B2B basis. The contract is with your limited company, not you as an individual.
But don’t attempt this tactic if you’re not sure that a replacement would be up to the job. If your substitute damages the relationship you’ve worked hard to build, you’ll have more than HMRC to worry about.
Contractors may not believe that such a small thing like stationery can make a difference. But it’s the smaller details supporting the bigger ones that can make all the difference.
Establish your business identity with:
The case of ECR Consulting v HMRC is a cracking example of how you can use company stationery as evidence:
“ECR is in business on its own account. [ECR] produced to the Tribunal copy business cards and company stationary. ECR operates from a dedicated business area at her home. It has company domain and website.”
Of course, you’d have to provide more substantial evidence than your dotcom address and a jazzed up Word document. But branded documents, digital or otherwise, can help prove that you’re operating outside IR35.
Any IR35 enquiry will place huge emphasis on the actual relationship with your end client. This is irrespective of whether you’re contracting via an agency or direct. And, to a larger extent, could become critical after April’s Reform.
IR35 teams will deem even the best contract worthless if your client doesn’t recognise its working practices. As they say, “a contract is only worth the paper it’s written on.” If you step beyond its bounds or don’t deliver in line with it, you’re in trouble.
HMRC will seek to question your end client about the reality of your services. That’s when your situation is most precarious. Who knows what the client will say when put under pressure and faced with a gruelling list of questions?
Speak to an IR35 specialist. They’ll always recommend you use a confirmation of working arrangements. It’s a simple document that sets out the true facts of the engagement between contractor and client.
Providing the arrangements are compliant, it should stop HMRC taking the investigation any further.
The downside is, some contractors can find it difficult to get a client to sign extra documents. Especially when said client is uncertain of the document’s nature and implications. With HMRC, you’re both dealing with an official government body, after all.
But you can reassure them that it’s not a legally binding contract or even a legal document. Its sole purpose is to help confirm your tax position should HMRC bring it into question. In reality, it will benefit all parties by saving a hassle, time and money if you were to become the subject of an IR35 enquiry.
You can download the confirmation of working arrangements document from Qdos Contractor. Then get your completed arrangement checked by an IR35 expert (such as Qdos) before asking your end client to countersign it.
Present yourself as a business first and foremost. Do everything in your power to make sure interested eyes perceive all parties in a contract as such.
If in any doubt, speak to your agency or umbrella company. They will be watching proceedings with laser focus over the coming months.
Don’t get caught inside IR35 for the sake of a phone call. Or for thinking you’re less smart than your peers for not knowing. IR35 is a fluid, slippery beast. Having someone on your side with a big, strong keep net is the best protection you’ll get!
John Yerou is a pioneer of contractor mortgages and owner and founder of Freelancer Financials, Contractor Mortgages®, C&F Mortgages and Self Employed Mortgages, trading styles and brands of the award-winning Mortgage Quest Ltd.